Kurimalawai & Ors v Minister for Immigration [2002] FMCA 289 (20 December 2002)

Last Updated: 24 December 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KURIMALAWAI & ORS v MINISTER FOR IMMIGRATION

[2002] FMCA 289

MIGRATION - Review of Migration Review Tribunal decision affirming a delegate's refusal of a sporting visa - whether applicants held visas of the same class at the time of application - whether MRT applied the wrong criteria - whether decision protected by the privative clause - declaration of invalidity granted.

Migration Act 1958 (Cth), ss.65, 351, 474, 475A, 483A

Migration Regulations 1994

Kodama v Minister for Immigration [2002] FMCA 262

Korovata v Minister for Immigration [2001] FCA 1446

Lachmi v Minister for Immigration [2002] FMCA 19

NAAV v Minister for Immigration [2002] FCAFC 228

NAGT of 2002 v Minister for Immigration [2002] FCAFC 319

First Applicant: Second Applicant: Third Applicant: Fourth Applicant:

SEMESA KURIMALAWAI MAKELISI SEAVULA ANARE SEAVULA QIVI SEAVULA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ635 of 2002

Delivered on:

20 December 2002

Delivered at:

Sydney

Hearing Date:

21 November 2002

Judgment of:

Driver FM

REPRESENTATION

Solicitors for the Applicant:

Mr M Jones Michael Jones, solicitor

Counsel for the Respondent:

Mr N Williams, SC

Solicitors for the Respondent:

Blake Dawson Waldron

THE COURT DECLARES THAT

(1) The decision of the Migration Review Tribunal made on 15 July 2002 is invalid and of no effect.

THE COURT DIRECTS THAT

(1) The parties have liberty to apply on five days notice for further orders arising out of these orders.

THE COURT ORDERS THAT

(1) The respondent is to pay the applicants' costs and disbursements of and incidental to the application, fixed at $4,600.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SZ635 of 2002

SEMESA KURIMALAWAI

First Applicant

MAKELISI SEAVULA

Second Applicant

ANARE SEAVULA

Third Applicant

QIVI SEAVULA

Fourth Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application under ss.475A and 483A of the Migration Act 1958 ("the Migration Act") to review a decision of the Migration Review Tribunal ("the MRT") made on 15 July 2002. The MRT affirmed decisions made by a delegate of the respondent Minister to refuse to grant to the applicants a cultural/social (temporary) class TE visa. The first applicant is the primary visa applicant and the other applicants are three members of his family.

2. The grounds of the application are set out in paragraph 3 of an affidavit by the solicitor for the applicants filed on 6 August 2002 as follows:

a) the Tribunal misinterpreted the law as set out in the Regulations in such a way that it failed to exercise its jurisdiction under the Act to review the case before it in accordance with the applicable law:

i) the Tribunal wrongly considered that it was a criterion for the visa for which the applicants had applied that there be a sponsorship which had been "approved" by the Minister, contrary to the law as stated by Emmett J in Korovata v Minister for Immigration [2001] FCA 1446;

ii) the Tribunal wrongly considered that it was a condition of the visa that the primary applicant not undertake employment that would provide him with a higher level of remuneration than his employment with the sponsor, without taking into account whether the actual obligations of the non-sponsored employment would interfere with the purpose for which he was sponsored;

iii) the Tribunal imposed a wrong standard on the meaning of the term "good financial and professional status in Australia" in clause 421.222(4)(c)(ii) and thus misdirected itself as to what evidence was required to satisfy that criterion.

b) in falling into the error set out in paragraph (a)(ii) the Tribunal applied a policy set out in Departmental guidelines without regard to the merits of the case. It therefore failed to exercise its jurisdiction under the applicable legislation;

c) the Tribunal failed to take into account the formal sponsorship lodged by the sponsor in which it made all of the relevant undertakings required by the legislation in relation to both the primary and secondary applicants.

3. These grounds were elaborated upon in written submissions by Mr Jones, solicitor for the applicants, on 14 November 2002. These grounds were augmented orally by Mr Jones, who appeared for the applicants at trial. In his oral submissions Mr Jones asserted that the MRT applied the wrong criteria to the applications, thereby breaching an inviolable pre-condition to the exercise of power by the MRT. In supplementary written submissions filed on 2 December 2002 Mr Jones asserts that the applicants should be taken to have filed their visa applications on 29 October 1999.

4. Mr Williams, for the Minister, filed written submissions on 21 November 2002 and 29 November 2002, and also made oral submissions at trial on 21 November 2002. Mr Williams submits that the MRT was correct in finding that the applications were lodged on 12 November 1999, that even if the applications had been lodged on 29 October 2002 the MRT applied the correct visa criteria and the result would have been the same. Mr Williams submits that the MRT did not commit any error of law in its assessment of the visa applications and that, even if it did, the error would be protected by the privative clause in s.474 of the Migration Act.

Background

5. The general background is set out in the reasons for decision of the MRT at paragraphs 8 to 17. The primary visa applicant is a rugby league footballer who plays with the Griffith Waratah Rugby League Football Club. He has played with that club since 1995 and previously had represented Fiji twice in international competitions. He sought the renewal of a subclass 421 visa, which he had earlier been granted. His last substantive visa was a subclass 421 visa which expired on 31 October 1999. Since then he has held a bridging visa. The MRT found that the current application for a subclass 421 visa was made on 12 November 1999.

6. The delegate refused to grant the visas sought on the basis that Mr Kurimalawai did not hold a substantive visa at the time of his application and did not provide information to demonstrate that he ceased to hold a substantive visa because of factors beyond his control. The MRT heard that Mr Kurimalawai attended the Parramatta office of the Immigration Department on Friday, 29 October 1999 with an application form. He was sent away by a Departmental officer with instructions that he should lodge his application after he had obtained supporting documentary evidence. It appears, however, that there was no reason why the Department should not have accepted the application when it was presented by Mr Kurimalawai on 29 October 1999. The MRT accepted that Mr Kurimalawai did not hold a substantive visa at the time of his application for reasons beyond his control. The MRT then purported to consider whether Mr Kurimalawai would have qualified for a subclass 421 visa if he had held such a visa at the time of his application. The MRT concluded that Mr Kurimalawai did not qualify for the grant of a subclass 421 visa because the sponsorship provided by the Griffith Waratah Rugby League Football Club was inadequate. The MRT found that the sponsorship from the club provided insufficient financial guarantees for Mr Kurimalawai and his family and that his needs were substantially met with his employment with the Bartter Enterprises Pty Limited (a poultry company) rather than from playing football. On that basis, the MRT found that a grant of a subclass 421 visa would be inconsistent with policy, which stipulates that a subclass 421 sporting visa should only be granted to persons who will be supported by their sporting activities, rather than by other employment.

The legislation

7. The Migration Act and the various regulations made under the Migration Act, principally the Migration Regulations 1994 ("the Migration Regulations"), provide for different classes of visas, and the criteria for grant of visas. In reaching a decision, the MRT is bound by the Migration Act, relevant regulations and written directions issued by the Minister under s.499 of the Migration Act.

8. Section 65 of the Migration Act also applies to decisions by the MRT to grant or refuse a visa. That section requires that, after considering a valid application for a visa, the decision maker, if satisfied that, among other things, criteria prescribed by the Migration Act or the Migration Regulations have been satisfied, is to grant the visa or, if not so satisfied, is to refuse to grant the visa. The MRT found that the relevant criteria and policy are the criteria contained in item 3004 in schedule 3 to the Migration Regulations, regulation 421.222(4) and the definition of "sponsor" in regulation 1.20. In addition, clauses 421.322 and 421.323 relevantly relate to the secondary applicants.

9. The MRT found that relevant policy guidance is provided in MSI 259 which indicates with respect to the subclass 421 visa applicant as follows:

4.5.3 In accordance with regulation 421.323, decision-makers must be satisfied that adequate arrangements are in place for the support of the applicant for the proposed period of stay in Australia. This would include return travel expenses, accommodation, health insurance, living expenses etc.

4.5.4 While the Sport visa does not preclude incidental employment it is not acceptable that sports people would have to obtain employment to resource their stay in Australia. In that case, it is suggested that the primary purpose of entry would be employment related, and the circumstances of the visa applicant should be assessed against a more appropriate visa class.

10. Clause 3004 of Schedule 3 provides as follows:

If the applicant:

(a) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

(b) entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

the Minister is satisfied that:

(c) the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

(d) there are compelling reasons for granting the visa; and

(e) the applicant complied substantially with any conditions subject to which the last entry permit or visa (if any) was granted (other than a condition of which the applicant was in breach solely because the entry permit or visa ceased to be in effect); and

(f) either:

(i) in the case of an applicant referred to in paragraph (a) - the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

(ii) in the case of an applicant referred to in paragraph (b) - the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

(g) the applicant intends to comply with any conditions subject to which the visa is granted; and

(h) if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

11. Sub clause 421.222(4) to Schedule 2 of the Migration Regulations provides as follows:

An applicant meets the requirements of this subclause if:

(a) the applicant seeks to enter Australia under an arrangement with an organisation in Australia to:

(i) be a player, coach or instructor in relation to an Australian team or organisation; or

(ii) participate in a training program; and

(b) the applicant is sponsored by an Australian citizen, an Australian permanent resident, and eligible New Zealand citizen or an organisation in Australia; and

(c) the applicant establishes:

(i) if there is a relevant labour agreement between the Minister and an Australian sporting organisation - that the sponsorship is in accordance with the agreement; and

(ii) that the sponsor has good financial and professional status in Australia; and

(iii) that the applicant has an established reputation in the field of sport; and

(iv) that the applicant and the sponsor have entered into a formal arrangement relating to the applicant's prospective activities in Australia; and

(d) approval of the application would not result in the number of Subclass 421 visas granted in a financial year on the basis of the satisfaction of the requirements of this subclause exceeding the maximum number of such visas specified, by Gazette Notice, for the purposes of this paragraph in respect of that financial year.

12. The MRT found at paragraph 31 of its decision (court book, page 136) that a "sponsor" in regulation 1.20 means a person who undertakes the obligations of a sponsor in relation to the applicant. Sub regulation 1.20(2)(b) relevantly provides that if the application is for a temporary visa the sponsor accepts responsibility for

(i) all financial obligations to the Commonwealth incurred by the applicant arising out of the applicant's stay in Australia; and

(ii) compliance by the applicant with all relevant legislation and awards in relation to any employment entered into by the applicant in Australia; and

(iii) unless the Minister otherwise decides, compliance by the applicants with the conditions under which the applicant was allowed to enter Australia;

13. In addition, sub regulation 1.20(3) provides that:

(3) a person who has been approved by the Minister as the sponsor of the applicant for a visa must enter into sponsorship by completing the relevant approval form and give it to the Minister no later than a reasonable period after the Minister approves the person as a sponsor.

14. In addition to the above provisions, the applicant contends that clause 421.230 of Schedule 2 is also relevant. That clause provides an additional eligibility criterion that:

If the application is made in the migration zone and the applicant was, at the time of application, the holder of a sub class 421 visa, the applicant satisfies the Minister that there is no reason to believe that the applicant does not continue to satisfy the primary criteria for the grant of a sub class 421 visa.

15. This clause means that if an applicant already holds a sub class 421 visa at the time of his or her application and applies in the migration zone, the relevant test for eligibility is whether there is any reason to believe that the applicant does not continue to satisfy the primary criteria for the grant of a sub class 421 visa (which are relevantly set out in sub clause 421.222(4)).

16. The respondent submits that paragraph (a) of sub clause 421.222(4) is of particular relevance. The respondent submits that the policy set out MSI 259 bears in particular upon paragraph (a).

Consideration and findings

17. The correct approach to the assessment of a sub class 421 visa application is set out in the decision of Emmett J in Korovata v Minister for Immigration [2001] FCA 1446. At paragraph 43 of that decision his Honour held that regulation 1.20(3) does not apply in relation to a sub class 421 visa. There is no process for the approval of a sponsor for sporting visas. Approval of sponsorship relates to some other classes of visa, notably skilled employment. Accordingly, the MRT was in error at paragraph 31 of its reasons for decision in including a reference to sub regulation 1.20(3) as a relevant legislative provision. Mr Jones submits that the MRT was also in error at paragraph 27 of its reasons (court book, page 136) in stating that there was no evidence of an approved sponsorship by Waratah Rugby League Football Club. After considering the sponsorship provided by the club the MRT concluded, at paragraph 40 of its reasons for decision (court book, page 138) that the sponsorship did not satisfy regulation 1.20 and "is not approved". If the MRT meant by these references that the sponsorship by the Waratah Club required Ministerial approval the MRT was clearly mistaken. It is not clear from the reasons for the decision of the MRT whether this is what the MRT meant, although the inclusion of the reference to sub regulation 1.20(3) might indicate that.

18. It is distinctly possible that the MRT misinterpreted the definition of "sponsor" in sub regulation 1.20. If it did, however, that misinterpretation is protected by the privative clause: NAGT of 2002 v Minister for Immigration [2002] FCAFC 319.

19. An alternative interpretation is that the MRT meant by "approval" that the sponsorship must meet the other criteria for a proper sponsorship in sub regulation 1.20. A further, and equally plausible explanation, is that the reference to "approval" was simply a reference to a sponsorship which had been previously accepted for the purposes of the grant of a sub clause 421 visa and which remained current. It is arguable that the MRT proceeded on the basis that the previous sub class 421 visa held by Mr Kurimalawai had run out and so the sponsorship which related to that previously granted visa was no longer "current" and the sponsorship must be considered afresh and "approved". I find, on balance, that that is what the MRT meant.

20. On the basis of my preferred interpretation the references to an "approval" of the sponsorship were simply references to the assessment of the sponsorship against the criteria in sub regulation 1.20 and sub clause 421.222(4). Mr Jones has submitted that the MRT applied the policy contained in MSI 259 without regard to the merits of the case. I disagree and accept the submissions of Mr Williams, for the respondent, on this point. Viewed as a whole, the reasons for decision of the MRT establish to my satisfaction that the MRT adopted a reasonable approach to the assessment of the criteria in sub clause 421.222(4) and regulation 1.20, provided that it was proper for the MRT to consider the visa application as an original application. Mr Jones submitted that the policy in MSI 259 is incompatible with those criteria. I reject that submission and prefer the submission of Mr Williams that the policy bears on paragraph (a) of sub clause 421.222(4). The policy simply seeks to ensure that persons entering Australia under a sporting visa do so on the basis that their primary reason for entering Australia is their sporting commitments and not their desire to undertake other employment.

21. Mr Jones also submits that the MRT was incorrect in concluding that the sponsorship provided by the Waratah Club was insufficient for purposes of a sub class 421 visa. Mr Jones pointed out that the MRT placed emphasis in its reasons on the financial remuneration and other benefits provided to Mr Kurimalawai by the club pursuant to the contract between the club and Mr Kurimalawai. He submitted that the MRT should have accepted the undertakings given by the club to the Commonwealth through the Department that the club would meet fully its sponsorship obligations (whatever those may entail). Those undertakings are set out in the court book at pages 6 and 35. Those undertakings are open to the interpretation that the club was willing to go substantially beyond its contractual obligations to Mr Kurimalawai in order to meet its obligations as a sponsor to him and his family. The MRT did not interpret the undertakings in that way and preferred to place stress upon the historical support provided by the club under its contract with Mr Kurimalawai. It was apparent that that contractual support was quite limited and clearly did not meet all of the financial needs of Mr Kurimalawai and his family. It was open to the MRT to check with the Waratah Club the extent of the undertakings it was purportedly now giving. It appears that the MRT did not do so. In my view, the MRT should have done so as the extent of the undertakings was obviously an important matter in determining the outcome of the visa applications and a response from the club should have been readily obtainable. In my view, that failure by the MRT was a breach of procedural fairness.

22. In my view, under s.359, although the MRT has no general obligation to make enquiries, an applicant has a legitimate expectation that the MRT will make enquiries where it is apparent that the information sought may be determinative of the outcome of the visa application and the information is readily obtainable. However, that breach of a procedural obligation arising under the general law is protected by the privative clause in s.474(1): NAAV v Minister for Immigration [2002] FCAFC 228; Lachmi v Minister for Immigration [2002] FMCA 19. The MRT also found that there was no current evidence before it that the Waratah Club has good financial and professional status in Australia. The MRT found that the evidence presented by the club was inadequate. Mr Jones submits that it is apparent from the reasons for decision of the MRT that there was some evidence of good financial and professional status and that in the absence of any contradicting evidence the MRT should have been satisfied on the basis of that evidence that good financial and professional status had been established. He may well be right but the submission, in my view, goes to the merits of the MRT decision and it is impermissible for me to review the decision of the MRT on that basis.

23. In my view, the more substantial issue in this case is whether the MRT applied the correct law to the assessment of the visa applications. The MRT, at paragraph 20 of its reasons (court book, page 134) proceeded on the basis that clause 3004 of Schedule 3 to the Migration Regulations applied. Mr Jones contends that this was wrong and that the MRT should have applied instead clause 421.230 of Schedule 2 to the Migration Regulations. Mr Williams submits that the approach taken by the MRT was correct but, even if it was not, both clause 3004 and clause 421.230 take one inevitably to the same criteria in clause 421.222(4) so that the end result would be the same. I disagree. Clause 3004 applies in circumstances where, at the time of making his or her application, the applicant did not hold a substantive visa. Obviously, clause 421.222(4) envisages that generally eligibility for a class 421 visa is considered on the basis that the application is being made as an initial application. On the other hand, if clause 421.230 applies, the applicant only has to establish that there is no reason to believe that the applicant does not continue to satisfy the primary criteria for the grant of a sub class 421 visa. In those circumstances the decision maker must necessarily have regard to the pre-existing grant of the same class of visa and determine whether any material change has taken place. The task for the decision maker is a more simple one. It is open to a decision maker to decide the application on the basis that the circumstances which led to an earlier decision maker granting the visa continue to apply.

24. In this case, the MRT gave no consideration to the prior grant of a sub class 421 visa to Mr Kurimalawai and his family because it decided that the previous visa granted had expired by the time Mr Kurimalawai applied for renewal of the visa. Mr Jones submits that the MRT should have approached the matter on the basis that Mr Kurimalawai applied for renewal of the visa when he attended the Department on 29 October 1999 with his application. The application was completed by each visa applicant on or about 14 October 1999: court book, page 5. I find that that completed application was presented to the Department when Mr Kurimalawai attended the Parramatta office on 29 October 1999. It is not clear whether Mr Kurimalawai paid the application fee on that date but that seems unlikely. A receipt was not issued until 13 November 1999, the day after the Department date stamped the application. There is no reason to believe that Mr Kurimalawai was unwilling or unable to pay the fee on 29 October 1999. The Departmental officer who sent Mr Kurimalawai away on that day should have accepted the application then. It was not necessary for Mr Kurimalawai to lodge supporting documentation at the same time as the application.

25. I surmise that it was for those reasons that the MRT found, at paragraph 25 of its reasons for decision (court book, page 135) that the applicants did not hold substantive visas on 12 November 1999 because of factors beyond their control. In my view, it does not matter whether the date of the current visa applications was 29 October 1999, as asserted by the applicants, or 12 November 1999, as found by the MRT. The effect of the finding by the MRT at paragraph 25 was to put the applicants in the same position that they would have been in if they had applied on 31 October 2002. That is because the test in clause 3004(f)(i) is whether the applicants would have qualified for a visa on the last day that they held a substantive visa. That day was 31 October 1999. If the applicants had applied on that day their applications would have been assessed pursuant to clause 421.230. The MRT paid no regard at all to that provision. Instead, it assessed the applications as if they were being assessed for the first time under clause 421.222(4). That much is clear from my interpretation of paragraph 27 of the MRT reasons (court book, page 136). The letter from the Waratah club, at page 35 of the court book, is evidence of a pre-existing sponsorship.

I find, contrary to the finding of the MRT, that the applicants had been sponsored by the Griffith Waratah Rugby League Club since 1995 and that that sponsorship remained current as at 31 October 1999, the relevant date for the consideration of the visa applications.

26. It follows, in my view, that the MRT applied the wrong legislative provisions to the applications. The MRT should have applied clause 421.230 of Schedule 2 to the Migration Regulations. There was no need for the MRT to consider the sponsorship afresh. The MRT mistakenly assumed that it must consider the visa applications as if they were fresh applications, rather than renewal applications made during the currency of the pre-existing substantive visas. This led the MRT to incorrectly assess the applications as initial applications rather than renewal applications.

27. In Kodama v Minister for Immigration [2002] FMCA 262 I held that a complete failure to have regard to a relevant criterion for the assessment of a visa application is not protected by the privative clause. I maintain that view. A complete failure to have regard to a relevant criterion is of a different order to the misinterpretation of a criterion, which is protected by the privative clause. A decision maker cannot properly assess a visa application without having regard to the relevant criteria. If the visa application cannot be properly assessed the decision maker cannot come to the requisite degree of satisfaction required by s.65 of the Migration Act. The decision maker thereby fails to ascertain a jurisdictional fact which is necessary for the exercise of the power conferred upon him or her. This amounts to a breach of a jurisdictional pre-requisite to the exercise of power which will invalidate the decision notwithstanding the privative clause.

28. I add that if I am wrong in the conclusion I have reached about the validity of the MRT decision I would nevertheless recommend to the Minister that he consider substituting a more favourable decision for the decision of the MRT, pursuant to s.351 of the Migration Act. Mr Kurimalawai presented evidence to the MRT that he and his family are assets to the Griffith community. He presented supporting statements from (among others) the Waratah Club (court book, page 35), the Bartter Company (his employer) (court book, page 37), his church (court book, page 38), the Riverina Fijiian community (court book, page 111) and his children's school (court book, pages 112-116). Mr Kurimalawai has been in Australia for about seven years on a sporting visa and there is no indication that anything has changed meriting a decision to decline to renew that visa. In my view, the decision of the MRT, as well as being unlawful, is unjust. If I am wrong in the finding that the decision is unlawful it remains unjust.

29. I will grant the applicants a declaration of invalidity. I will also give the parties liberty to apply for further orders should that be necessary.

30. I will hear the parties as to costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 20 December 2002